ACTS AND OMISSIONS – A “DUTY TO RESCUE”?
Article 2 of the Quebec Charter of Human Rights and Freedoms, L.R.Q. c. C-12:
«2. Every human being whose life is in peril has a right to assistance.
Every person must come to the aid of anyone whose life is in peril, either personally or by calling for aid, by giving him the necessary and immediate physical assistance, unless it involves danger to himself or a third person, or he has another valid reason.»
Eaton v. Moore[1951] S.C.R2470 civil law [R2 7]
Facts. A third party dropped lotion on the floor, which made a transparent slippery spot. Clock clerk Frank Bertrand was conducting a business with a customer but he phone the maintenance service a minute after the spill. A janitor arrived within 3 minutes of the spill. But Moore had already fallen.
Question. Is Eaton vicariously liable for Bertrand’s not taking action (omission to act) to remove the spill himself? Should Bertrand have done something right away?
Decision. No.
Reasoning. Rinfret CJ. Not all protections can be taken to prevent all accidents. Given the size of the spill, an accident was not foreseeable and Bertrand’s duty was more to watch his watches, especially since he had phoned the maintenance department. Taschereau adds that there could have been a moral duty to act, but no legal obligation to do so. Estey & Cartwright (dissenting). There was a duty to warn, Estey J. pointing out that the warning was a very low burden to act Cartwright insisting more on the duty of the salespeople on the floor to protect customers.
Ratio. The civil law will impose a duty to act if there is reasonable foreseeability.
Comments. Note the use of the word “duty”. Is it the influence of the common law on the civil law that mixed Rinfret up? “Duty” is probably used as meaning “fault”
Last paragraph, first page of the case. [something about morals]. There is something confusing. Is “duty” used instead of “fault”? Question of foreseeability. Point being: it’s badly written. Be critical when you read it.
Murphy v. Little Memphis Cabaret [1996] O.T.C. 313 (Ontario General Division) [R2 25]
Facts. One man from a two-man party and one man from a four-man party get into a fight. Barman throws them out. Group of four beats up group of two. There is no evidence that they were intoxicated.
Question. Did the bar owner owe a duty of care to the plaintiff?
Holding. Yes.
Reasoning. It was foreseeable that throwing the men out would lead to further trouble. The bar owner should have called the police, a cab, or let the man leave in two groups. The duty the patron owed the plaintiff included “exercising reasonable care in expelling (1) a patron where (2) the danger that awaits is imminent and (3) originated within the tavern.” And (4) the burden wasn’t too high (this sounds like a cost/benefit analysis).
Ratio. These four steps create a special relationship.
Comments. Principle of Jordan House v. Menow [1973] SCC used here (as well as in Crocker), though in Jordanthe patrons were drunk.
Crocker v. Sundance Northwest Resorts Ltd. [1988] 1 S.C.R21186 [R2 17] common law
Facts. Crocker and a friend decide to take part in a tubing competition. Wearing jackets labeling them as participants, they take a lot of alcohol. They win the first round and drink some more. The owner sees they are inebriated, asks them if they think they can continue, they say yes and that’s it, off they go. Twice. Crocker and his friend are flipped out and Crocker becomes quadriplegic.
Question. 1. Was Sundance responsible for what happened to Crocker? Did Sundance commit a fault? 2. Does the fact that Crocker (drunk) had signed a waiver (he hadn’t realized he had) change anything? Did Crocker assume the risk? 3. Is Crocker partly responsible?
Holding. Yes, Sundance owed a duty of care to Crocker who hadn’t VARed, and is thus mostly responsible.
Reasoning. 1. Wilson J. noted the common law distinction between “misfeasance” (action) and “nonfeasance” (omissions), but pointed out that nonfeasance can be a basis for fault in a growing number of kinds of relationships.
[R218 p. 1193, philosophy behind the reluctance, though common law has eventually opened up]: “The laissez-faire approach of the common law restrained men from committing affirmative acts of injury, but shrank from converting the courts into an agency for forcing men to help each other.” It is however today more on the: foreseeability they can suffer injury” In this case, she relied on Jordan House v. Menow and other case of intoxicated people to find “a duty not to place another person in a position where it is foreseeable that that person could suffer
ecognising a duty of care (this goes further than Donoghue): will this open floodgates? Reid says: discretion can be used, but the Home Office doesn’t have immunity because the jailer’s decision to go to sleep. But introduction of policy rationales to protect from liability (though it’s rejected) [R.35 p. 1032].
Lord Diplock (more restrictive than Reid): (1) prove that the escape and damage were reasonably foreseeable. (2) Given this departs from the manufacturer’s liability sought in Donoghue, let’s try to establish precedents by analogies. If it is not possible, it is the Court decision to create or extend duty of care. (3) This will be based on policy rationales [R237], for instance, will members of the public at large be injured if the prisoner escapes? Of course, the Home Office cannot owe a duty of care to the public at large [R243]. There are thus three conditions to be met after the reasonable foreseeability test. Damages must occur: in the course, time and vicinity of escape. Lord Diplock is afraid the foreseeability could be extended too far: he wants liability only for the neighbour who was exposed to an exceptional added risk (not the risk of the great public)[1].
Ratio. The Court will use principles developed in Donoghue but will also look at policy rationales. VERy RF.
Comments. Public authority is immune to civil liability in policy decisions (doit-il utiliser le droit privé pour dire au gouvernement comment agir?), even if they are deemed negligent as such. However, they can be liable for carrying out these policies negligently (operational decision).
Nouveauté dans cet arrêt: État, chain relationship and omission.
Introduction of public policy as an important element but two different ways of using public policy, the most notable being Lord Diplock’s setting of boundaries.
[1] This has been criticised as arbitrary.
